Exhibit 2.1
-----------
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this "Agreement"), dated as of August 8, 2002, by
and between RHEOMETRIC SCIENTIFIC, INC., a Delaware corporation (the "Company"),
and ANDLINGER CAPITAL XXVI LLC, a Delaware limited liability company (the
"Investor"). Capitalized terms used herein but not otherwise defined shall have
the meanings assigned to such terms in Section 1.
WHEREAS, the Company and the Investor desire to enter into an
agreement pursuant to which the Investor will purchase from the Company, and the
Company will sell to the Investor up to an aggregate of two thousand (2,000)
shares of the Company's Series B Preferred Stock, $.01 par value per share (the
"Preferred Stock"). The Preferred Stock shall have the terms and conditions set
forth in the form of Certificate of Designation, Preferences and Rights of
Series B Preferred Stock (the "Certificate of Designation") attached hereto as
Exhibit A; and
WHEREAS, a special committee of disinterested directors (the
"Special Committee") of the Board of Directors of the Company has recommended
that the Board of Directors of the Company (the "Company Board") approve this
Agreement and the conditions set forth herein, and the Company Board has
approved this Agreement and authorized the Company to enter into, execute,
deliver, and perform its obligations under this Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this Agreement agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Accredited Investor" has the meaning ascribed to such term in
Regulation D of the Securities Act, as amended.
"Securities Act" means the Securities Act of 1933, as amended.
2. Purchases and Sales; Closings.
(a) First Purchase and Sale; First Closing. Subject to the terms and
conditions of this Agreement, at the First Closing (defined below), the Investor
agrees to purchase from the Company, and the Company agrees to sell to the
Investor one thousand (1,000) shares of Preferred Stock (the "First Preferred
Shares") at a price of $1,000 per share, for an aggregate purchase price of
$1,000,000 (the "First Purchase Price"). The closing of the purchase and sale of
the First Preferred Shares (the "First Closing") shall take place at the offices
of Dechert, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 on the date hereof
or at such other place or such other time or date as the Company and the
Investor may agree (the "First Closing Date"). At the First Closing, the Company
shall deliver to the Investor, certificates evidencing the First Preferred
Shares upon payment of the First Purchase Price, by a cashier's or certified
check, or by wire transfer of immediately available funds to an account
designated by the Company.
(b) Second Purchase and Sale; Second Closing. Subject to (i) the
terms and conditions of this Agreement and (ii) the delivery of written notice
by the Investor to the Company (the "Second Closing Notice") of its election to
purchase the Second Preferred Shares (defined below), at the Second Closing
(defined below), the Investor agrees to purchase from the Company, and the
Company agrees to sell to the Investor five hundred (500) shares of Preferred
Stock (the "Second Preferred Shares") at a price of $1,000 per share, for an
aggregate purchase price of $500,000 (the "Second Purchase Price"). The closing
of the purchase and sale of the Second Preferred Shares (the "Second Closing")
shall take place at the offices of Dechert, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000. The date of the Second Closing (the "Second Closing Date") shall
occur within thirty (30) days of the Investor's delivery of the Second Closing
Notice. At the Second Closing, the Company shall deliver to the Investor,
certificates evidencing the Second Preferred Shares upon payment of the Second
Purchase Price, by a cashier's or certified check, or by wire transfer of
immediately available funds to an account designated by the Company.
(c) Third Purchase and Sale; Third Closing. Subject to (i) the terms
and conditions of this Agreement and (ii) the delivery of written notice by the
Investor to the Company (the "Third Closing Notice") of its election to purchase
the Third Preferred Shares (defined below), at the Third Closing (defined
below), the Investor agrees to purchase from the Company, and the Company agrees
to sell to the Investor five hundred (500) shares of Preferred Stock (the "Third
Preferred Shares" and together with the First Preferred Shares and the Second
Preferred Shares, the "Investor Preferred Shares") at a price of $1,000 per
share, for an aggregate purchase price of $500,000 (the "Third Purchase Price").
The closing of the purchase and sale of the Third Preferred Shares (the "Third
Closing") shall take place at the offices of Dechert, 00 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx, 00000. The date of the Third Closing (the "Third Closing Date")
shall occur within thirty (30) days of the Investor's delivery of the Third
Closing Notice. At the Third Closing, the Company shall deliver to the Investor,
certificates evidencing the Third Preferred Shares upon payment of the Third
Purchase Price, by a cashier's or certified check, or by wire transfer of
immediately available funds to an account designated by the Company.
(d) No Commitment Regarding Second Preferred Shares or Third
Preferred Shares. The Investor shall be under no obligation to purchase the
Second Preferred Shares or the Third Preferred Shares. Any delivery of the
Second Closing Notice or the Third Closing Notice shall be at the sole
discretion of the Investor.
3. Restrictions on Transfer; Legend. Investor acknowledges that all
certificates representing Investor Preferred Shares shall bear the following
legend in addition to any other legend required under applicable law:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OR STATE SECURITIES LAWS OR AN OPINION OF
COUNSEL,
2
SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION IS NOT
REQUIRED.
4. Representations and Warranties of the Company. As a material
inducement to the Investor to enter into this Agreement and purchase the
Investor Preferred Shares, the Company hereby represents and warrants to the
Investor as follows:
(a) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) Authorization; Due Execution. The Company has full power and
authority to enter into this Agreement and to perform its obligations hereunder
and to consummate the transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by the Company and constitutes the
legal, valid and binding agreement of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting the enforceability of creditors' rights generally,
general equitable principles and the discretion of courts in granting equitable
remedies.
(c) No Conflict. The execution, delivery and performance by the
Company of this Agreement, the performance by the Company of the transactions
contemplated hereby and the fulfillment by the Company of and compliance by the
Company with the terms and conditions hereof does not and will not violate or
conflict with any terms or provisions of (i) the Company's certificate of
incorporation or bylaws, (ii) any contract, deed, lease or other agreement to
which the Company is a party or to which any of the Company's assets are subject
or (iii) any judgment, decree, order, statute, rule or regulation applicable to
the Company or any of the Company's assets, except for such violations which
could not reasonably be expected to materially impair or delay the Company's
ability to consummate the transactions contemplated hereby. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any government agency or public or regulatory unit, agency, body or
authority with respect to the Company is required in connection with its
execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(d) Capitalization. As of the date hereof, the authorized capital
stock of the Company consists of 50,000,000 shares of common stock, $.01 par
value per share (the "Common Stock"), 1,000,000 shares of Preferred Stock and no
other shares of capital stock. As of May 6, 2002, 24,926,411 shares of Common
Stock were issued and outstanding. As of April 24, 2002, (i) options to purchase
an aggregate of 310,300 shares of Common Stock were outstanding under the
Company's 1996 Stock Option Plan (the "1996 Plan"), and (ii) options to purchase
an aggregate of 423,800 shares of Common Stock were outstanding under the
Company's 2000 Stock Option Plan (the "2000 Plan"). As of the date hereof, (i)
2,800,000shares of Common Stock are held by the Company in its treasury; (ii) no
shares of capital stock of the Company are held by the Company's subsidiaries;
and (iii) no shares of Preferred Stock are outstanding or held in the Company's
treasury. The Company has no outstanding bonds, debentures, notes or other
obligations entitling the holders thereof to vote (or which are convertible into
or exercisable for securities having the right to vote) with or separate from
the stockholders of the Company on any matter except as set forth in the
Company's public filings with the Securities and Exchange Commission. Except as
set forth in the Company's public filings
3
with the Securities and Exchange Commission, there are no stock appreciation
rights or limited stock appreciation rights outstanding other than those
attached to options under the 1996 Plan and the 2000 Plan. As of the date
hereof, except as disclosed in the Company's public filings with the Securities
and Exchange Commission, since March 6, 2000, the Company (i) has not issued any
shares of Common Stock other than upon the exercise of options issued under the
1996 Plan and the 2000 Plan, and (ii) has not split, combined or reclassified
any of its shares of capital stock. All issued and outstanding shares of Common
Stock are duly authorized, validly issued, fully paid, nonassessable and free of
preemptive rights. As of the date hereof, there are no other authorized shares
of capital stock of the Company, no securities of the Company convertible or
exchangeable for shares of capital stock or voting securities of the Company,
and no existing options, warrants, calls, subscriptions, convertible securities,
or other rights, agreements or commitments which obligate the Company or any of
its subsidiaries to issue, transfer or sell any shares of capital stock of, or
equity interests in, the Company or any of its subsidiaries except as set forth
herein or disclosed in the Company's public filings with the Securities and
Exchange Commission. As of the date hereof, there are no outstanding obligations
of the Company or any of its subsidiaries to repurchase, redeem or otherwise
acquire any shares of capital stock of the Company and there are no performance
awards outstanding under the 1996 Plan, the 2000 Plan or any other outstanding
stock related awards. As of the date hereof, other than the issuance of the
Investor Preferred Shares in connection with the transactions contemplated
hereunder, and other than upon the exercise of options issued under the 1996
Plan and the 2000 Plan, after the Closing, neither the Company nor any
subsidiary of the Company will have any obligation to issue, transfer or sell
any shares of capital stock of the Company or any subsidiary of the Company
pursuant to any benefit plan. As of the date hereof, there are no voting trusts
or other agreements or understandings to which the Company or any of its
subsidiaries is a party with respect to the voting of capital stock of the
Company or any of its subsidiaries.
(e) The Securities. The Investor Preferred Shares upon issuance in
accordance with the terms of this Agreement will be duly authorized, validly
issued, fully paid and non-assessable, and free from all taxes, liens, claims
and encumbrances with respect to the issue thereof and shall not be subject to
preemptive rights or other similar rights of stockholders of the Company and
will not impose personal liability upon the holder thereof.
(f) SEC Filings. The Company has filed all required forms, reports and
documents with the Securities and Exchange Commission (the "SEC") required to be
filed by it pursuant to the federal securities laws and the rules and
regulations promulgated thereunder (collectively, the "SEC Documents"), all of
which have complied as of their respective filing dates in all material respects
with all applicable requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder. None of such forms, reports or documents at the time filed contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, provided, that, if any such form, report or document has been
amended by a later-filed SEC Document filed and publicly available prior to the
date hereof, then the representation contained in this sentence shall not apply
to such form, report or document, but shall apply to such later-filed SEC
Document at the time filed. Except to the
4
extent that information contained in any SEC Document has been revised or or
superseded by a later-filed SEC Document, none of the SEC Documents contains any
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents comply as to
form in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles (except, in
the case of unaudited statements, as permitted by Form 10-Q of the SEC) applied
on a consistent basis during the periods involved (except as may be indicated in
the notes thereto) and fairly present the consolidated financial position of the
Company and its subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended (subject,
in the case of unaudited statements, to normal year-end audit adjustments),
provided, that, if any such financial statements have been restated in a
later-filed SEC Document filed and publicly available prior to the date hereof,
then the representation contained in this sentence shall not apply to such
financial statements, but shall apply to such restated financial statements in
such later-filed SEC Document at the time filed.
5. Representations and Warranties of the Investor. As a material
inducement to the Company to enter into this Agreement and sell the Investor
Preferred Shares to the Investor, the Investor hereby represents and warrants to
the Company as follows:
(a) Organization. The Investor is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Authority. The Investor has full power and authority to execute
and deliver this Agreement, to perform its obligations under this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Investor and constitutes a legal,
valid and binding agreement, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforceability of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies.
(c) No Conflict. The execution, delivery and performance by the
Investor of this Agreement and the transactions contemplated hereby and the
fulfillment by it of and compliance by it with the terms and conditions of this
Agreement do not and will not, violate or conflict with any terms or provisions
of (i) the Investor's limited liability company agreement, (ii) any contract,
deed, lease or other agreement to which its is a party or to which any of it
assets are subject or (iii) any judgment, decree, order, statute, rule or
regulation applicable to it or any of its assets, except for such violations
which could not reasonably be expected to materially impair or delay its ability
to consummate the transactions contemplated hereby. No consent, approval, order
or authorization of, or registration, declaration or filing with, any government
agency or public or regulatory unit, agency, body or authority with respect to
it is required in connection with its execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
5
(d) Investment. The Investor (i) understands that the Investor
Preferred Shares have not been registered under the Securities Act, or under any
state securities laws, and are being offered and sold in reliance upon federal
and state exemptions for transactions not involving any public offering, (ii) is
acquiring the Investor Preferred Shares solely for its own account for
investment purposes, and not with a view to the distribution thereof, (iii) is a
sophisticated investor with such knowledge and experience in business and
financial matters as would enable the Investor to evaluate and understand the
risk of ownership of the Investor Preferred Shares, (iv) has received certain
information concerning the Company and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and the risks
inherent in holding the Investor Preferred Shares, (v) is able to bear the
economic risk and lack of liquidity inherent in holding the Investor Preferred
Shares, and (vi) is an Accredited Investor.
6. Closing Fees. As a material inducement to the Investor to enter
into this Agreement and purchase the Investor Preferred Shares, the Company
agrees to pay to the Investor (i) on the First Closing Date, the Second Closing
Date and the Third Closing Date, attorneys' fees and out-of-pocket expenses of
legal counsel to the Investor, (ii) on the First Closing Date, a closing fee of
$62,500, (iii) on the Second Closing Date, if any, a closing fee of $31,250, and
(iv) on the Third Closing Date, if any, a closing fee of $31,250.
7. Conditions to Closing.
(a) Obligations of the Investor. The obligations of the Investor to
consummate the transactions contemplated by this Agreement shall be subject to
its receipt, at or prior to the First Closing, the Second Closing and the Third
Closing, as applicable, of each of the following deliverables in form and
substance satisfactory to its counsel, any and all of which may be waived in
whole or in part by the Investor to the extent permitted by applicable law:
(i) a certificate of a senior officer of the Company to the
effect that the representations and warranties set forth in this Agreement are
true and correct in all material respects on and as of the date hereof in the
case of the First Closing, or on and as of the date of the Second Closing or the
Third Closing, as applicable, as if made on such date;
(ii) at the First Closing, a certificate of the assistant
secretary of the Company certifying (x) the resolutions of the Company Board
authorizing the execution, delivery and consummation of this Agreement and the
transactions contemplated hereunder, (y) the certificate of incorporation of the
Company, and (z) the bylaws of the Company;
(iii) at the Second Closing and the Third Closing, a certificate
of the assistant secretary of the Company certifying the resolutions of the
Company Board determining that the Company has commercially reasonable needs for
the $500,000 of additional capital;
(iv) executed certificates evidencing the First Preferred Shares,
the Second Preferred Shares or the Third Preferred Shares, as the case may be;
(v) at the First Closing, an executed copy of this Agreement;
6
(vi) at the First Closing, evidence of the filing of the
Certificate of Designation with the Secretary of State of the State of Delaware;
(vii) at the First Closing, there shall have been obtained a
fairness opinion with respect to the purchase and sale of the Investor Preferred
Shares in accordance with the terms and conditions of this Agreement in form and
substance acceptable to the Special Committee; and
(viii) payment of fees payable to the Investor pursuant to
Section 6 hereof.
(b) Obligations of the Company. The obligations of the Company to
consummate the transactions contemplated by this Agreement shall be subject to
its receipt, at or prior to the First Closing, the Second Closing and the Third
Closing, as applicable, of each of the following deliverables in form and
substance satisfactory to counsel to the Special Committee, any and all of which
may be waived as a condition to closing, in whole or in part, by the Company to
the extent permitted by applicable law:
(i) a certificate of the manager or a senior officer of the
Investor to the effect that the representations and warranties set forth in this
Agreement are true and correct in all material respects on and as of the date
hereof in the case of the First Closing, or on and as of the date of the Second
Closing or the Third Closing, as applicable, as if made on such date;
(ii) at the First Closing, an executed copy of this Agreement;
(iii) at the First Closing, there shall have been obtained a
fairness opinion with respect to the purchase and sale of the Investor Preferred
Shares in accordance with the terms and conditions of this Agreement in form and
substance acceptable to the Special Committee; and
(iv) at the Second Closing and the Third Closing, the Company
Board shall have determined that the Company has commercially reasonable needs
for the $500,000 of additional capital;
(v) payment of the First Closing Price, Second Closing Price or
Third Closing Price, as applicable.
8. Survival of Representations and Warranties. The representations and
warranties of the Company contained in Section 4 of this Agreement, and the
representations and warranties of the Investor contained in Section 5 of this
Agreement, shall survive the termination of this Agreement and the consummation
of the transactions contemplated hereby, except that the representations and
warranties of the Company contained in Section 4(f) hereof shall survive the
First Closing Date until the second anniversary of the First Closing Date.
9. Miscellaneous.
(a) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any
7
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or any other jurisdiction, but this Agreement shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
(b) Entire Agreement. Except as otherwise expressly set forth herein,
this Agreement embodies the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(c) Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. No party may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other.
(d) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
(e) Remedies. The Company acknowledges that the Investor Preferred
Shares are unique and recognizes and affirms that in the event of a breach of
this Agreement by the Company, money damages may be inadequate and the Investor
may have no adequate remedy at law. Accordingly, the Company agrees that the
Investor shall have the right, in addition to any other rights and remedies
existing in its favor at law or in equity, to enforce its rights and the
obligations of the Company hereunder not only by an action or actions for
damages but also by an action or actions for specific performance, injunctive
and/or other equitable relief (without posting of bond or other security).
(f) Notices. All notices, demands, or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and will be effective (i) if given by facsimile, when such facsimile is
transmitted to the facsimile number specified in accordance with this Section
9(f) and confirmation is received, (ii) if given by U.S. certified or registered
mail, postage prepaid, five (5) Business Days following such posting, (iii) if
given by overnight courier, one (1) Business Day after deposit thereof with a
national overnight courier service, or (iv) if given by any other means, when
received at the address specified in accordance with this Section 9(f). Such
notices, demands and other communications shall be sent to the address indicated
below:
If to the Company, to:
Rheometric Scientific, Inc.
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Facsimile No.: 732.560.8550
8
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: 609.919.6639
If to the Investor:
Andlinger Capital XXVI LLC
c/o Andlinger & Company, Inc.
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 914.332.4977
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party.
(g) Governing Law. All questions concerning the construction, validity
and interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
(h) Amendment and Waiver. The provisions of this Agreement may be
amended and waived only with the prior written consent of the parties. No waiver
by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
(i) Time of the Essence; Computation of Time. Time is of the essence
for each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or the discharge of any duty hereunder shall fall upon
a Saturday, Sunday, or any date on which banks in New York, New York are
authorized to be closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding day which is a
regular business day.
(j) Waiver of Jury Trial. Each of the parties hereto waives any right
it may have to trial by jury in respect of any litigation based on, arising out
of, under or in connection with this Agreement or any course of conduct, course
of dealing, verbal or written statement or action of any party hereto.
(k) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
9
(l) Independent Counsel and Independent Advisor. The Company
acknowledges that, through the Special Committee, it has been represented by
independent counsel and has engaged an independent financial advisor in
connection with the negotiation, execution, delivery and consummation of the
transactions contemplated under this Agreement.
* * * * *
10
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
RHEOMETRIC SCIENTIFIC, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
ANDLINGER CAPITAL XXVI LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
[Signature Page to the Securities Purchase Agreement]
